BMC appointed to resume operation of NARH's ER

PITTSFIELD - A Superior Court judge has ordered North Adams Regional Hospital to keep its emergency department open, at least temporarily. The order came less than a day before the hospital planned to close its doors for good.

Following a hearing Thursday in Berkshire Superior Court, Judge John A. Agostini issued a temporary injunction that prevents the hospital from closing its emergency department until it complies with state hospital closure requirements or until Berkshire Medical Center can get a license to operate a satellite emergency facility there for the long term.

Berkshire Superior Court Judge John A. Agostini orders the emergency department at North Adams Regional Hospital to stay open. Berkshire Medical Center will run the operation.

The state Department of Public Health is expediting that license.

The order keeps the emergency department open for at least a week.

"Northern Berkshire Healthcare is taking the necessary steps to comply with [Thursday's] court decision regarding Emergency Department services," North Adams Regional posted Thursday evening on its Facebook page. "The NARH Emergency Department will remain open with staffing including emergency physicians, registered nurses, lab, medical imaging and pharmacy services, as well as necessary support staff."

The post also expressed concern that it would run out of money and supplies to uphold its court-ordered duty.

In dire financial straits, Northern Berkshire Healthcare announced Tuesday that the emergency department would close at 10 a.

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m. Friday. The ruling does not apply to rest of the 129-year-old hospital, the visiting nurse association and hospice, and a surgical practice, which are to be closed as of Friday.

Northern Berkshire Healthcare said Tuesday that 530 full- and part-time workers would lose their jobs when the company shuts down by Friday. It was not immediately clear how many workers in the emergency department and support services will remain on board in the interim.

A photo of Judge John A. Agostini's order to keep the emergency department at North Adams Regional Hospital open for the interim.

Between 40 and 70 patients are treated in North Adams' emergency department every day, according to Northern Berkshire Healthcare spokesman Paul Hopkins.

In the emergency department at North Adams Regional on Thursday, employees shared hugs when they heard the news.

"This is exciting news, something we've been praying and working for," said Diane George, a registered nurse, who said the staff remained cautious while awaiting confirmation from the administration.

"The emergency department staying open is critical, she said, "for the safety and well-being of our community. If we prevent just one death, it was worth it."

A hearing on a permanent injunction is scheduled for Thursday, April 3, at 10 a.m., at which time Attorney General Martha Coakley's office seek to keep the emergency department open for at least 90 days in the hopes of an ownership transition or the closure of the ER.

Coakley's office intervened Thursday when it became clear that Northern Berkshire County's 11 communities would lose immediate access to emergency services. Lawyers from the AG's office arrived with their legal papers at Berkshire Superior Courthouse around 2 p.m. Thursday.

The order also states that the emergency department must remain open until it "has exhausted the funds that it possesses or that may be paid" to the hospital by a still-undefined source.

That financial picture was murky on Thursday. But Bob Ross, the chief of the Business and Labor Bureau for the AG's office, said it would become clearer next week.

In court, Assistant Attorney General Mary Beckman, who heads up the Nonprofit and Public Charities Division, said the office is working out financial details. Discussions continue between the state's executive and legislative branches, who were "committed to making" funds available to keep the emergency department open, she said.

The funds would be used to keep it open and possibly to provide money to BMC to get the satellite facility "up and running," she said.

"We are making broad efforts to make funds available to save the emergency department," she told the court. "Emergency room services are absolutely critical [to that area]. The emergency department needs to remain open."

Though its licensing timetable is uncertain, BMC said it intends to engage NARH staff to re-open and run the emergency services.

"NARH staff knows the facility, the hospital systems and the community," said David Phelps, president and CEO of Berkshire Health Systems, BMC's parent company. "We expect to restore services as soon as DPH completes its licensure review." BMC stepped in Wednesday to keep two physician practices under Northern Berkshire Healthcare running.

Northern Berkshire Healthcare opposed the measure for lack of money to carry it out. James A. Wright III, a Boston attorney, sent the company's opposition via fax - the attorney didn't appear in person - that stated the hospital "would happily welcome any proposal that provides sufficient funding" to "continue operations." The attorney wrote that the company would "welcome - and has been actively seeking - a partner to acquire the hospital and restore it to a better financial footing."

The hospital, according to the objection, believes the AG's proposal was made "with good intentions" but they couldn't support it since it didn't provide any necessary funding to operate the facility. According to the court filing, the hospital only has about $140,000 in cash - after paying out employees - with which to continue operations.

The hospital said there was a risk of "literally running out of cash to fund operations," potentially posing a risk for patients. Vendors could refuse to provide the hospital with critical blood, medicine and other supplies needed to run a functional emergency room, according to the filing.

The opposition also states that the proposed order from the AG's office is vague and doesn't include specifics on what other departments might need to also stay open in order to have a functioning ER.

In light of this, the judge ordered the AG's office to file a revised motion by noon Friday that specifically addresses what other departments - radiology, the lab and the pharmacy were discussed in court - would be required to stay open in order to support the emergency department.

Berkshire Medical Center will be appointed temporary provider of emergency service and medical records support services to "alleviate and avoid and immediate threat to the health and safety" of the residents served by the hospital and to avoid the "immediate threat to the health and safety" of patients whose electronic health records would not be accessible.

Before that happens, BMC needs to get a license to operate the emergency department in North Adams from the state Department of Public Health, which could take "days or weeks," according to attorney John Rogers, who represents Berkshire Health Systems.

"We hope they will be able to come in a matter of days and step in and help," said Beckman.

The order keeps the hospital's emergency department open until it "properly and completely complies with the hospital closure requirements" which states that the hospital is required to give a 90-day notice before closing.

Bart Hollander, the chief of the AG's Western Massachusetts Regional Office in Springfield, told the court the hospital was "in clear violation of the law" by giving such short notice.

He said it was "clearly in the public's interest" to keep the hospital's emergency department open.

The hospital must also sit down with DPH to evaluate the feasibility of the "long-term provision of emergency and other services at the hospital facility" to determine under what terms services will continue to be provided after the expiration of BMC's authority under the order.

The hospital's creditors are also restrained from taking any action "that would interfere with or frustrate the purpose" of the order without "advance leave" of the court.

Beckman admitted that with the short amount of time they have had to work on the issue, they were in uncharted territory and were "making it up as we go along."

She said there was a lot to still work out, but that this was a major step in solving the issue.

Attorney General Martha Coakley said the move prevented a regional health crisis.

"As someone who grew up in North Adams, I know firsthand how critical this hospital is to the surrounding community," Coakley said in a statement. "This injunction is the first step towards preventing an immediate health crisis for the area and keeping emergency services open. We are continuing to work closely with the administration and elected officials to help ensure continued access to critical health services for the entire community."

"My anticipation is after next week when it's back in court, that will be extended through the next three months, and we will get an extended period of time to look at what health care will look like in Northern Berkshire," he said.

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